Citation Nr: 1033196
Decision Date: 09/02/10 Archive Date: 09/13/10
DOCKET NO. 06-02 178 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for the cause of the Veteran's
death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. T. Sprague, Associate Counsel
INTRODUCTION
The Veteran had active service in the United States Army from
July 1948 to June 1972; he died in January 2005, and the
appellant is his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2005 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California. The case has been before the Board
previously, and was remanded in January 2008 and January 2009 for
evidentiary development. All actions have been accomplished and
the case is ripe for appellate review.
The appellant appeared at a Travel Board Hearing in November
2007. A transcript is associated with the claims file.
FINDING OF FACT
The competent medical evidence of record indicates that the
Veteran had radiation therapy and other treatment for service-
connected prostate cancer, which was evaluated as 100 percent
disabling; the medical evidence shows that the condition of
prostate cancer, as well as associated treatment, substantially
and materially contributed to the cause of the Veteran's death.
CONCLUSION OF LAW
Service connection for the cause of the Veteran's death is
warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137,
1310, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
On November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114
Stat. 2096 (2000). This law redefines the obligations of VA with
respect to the duty to assist and includes an enhanced duty to
notify a claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.
First, VA has a duty to notify the appellant of any information
and evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2009).
Information means non-evidentiary facts, such as the claimant's
address and Social Security number or the name and address of a
medical care provider who may have evidence pertinent to the
claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38
C.F.R. § 3.159(a)(5) (2009). Second, VA has a duty to assist the
appellant in obtaining evidence necessary to substantiate a
claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)
(2009).
As discussed in more detail below, sufficient evidence is of
record to grant the claim for service connection for the cause of
death. Therefore, no further development is needed with respect
to this claim.
Legal Criteria-Cause of Death
Applicable law provides that service connection will be granted
if it is shown that the veteran had a disability resulting from
an injury experienced or a disease contracted in the line of
duty, or for aggravation in the line of duty of a preexisting
injury or disease, in the active military, naval, or air service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Where a Veteran has served for 90 days or more during a period of
war and cardiovascular or cerebral vascular disease or
hypertension become manifest to a degree of 10 percent within one
year from the date of termination of such service, such disease
shall be presumed to have been incurred in service, even though
there is no evidence of such disease during the period of
service. This presumption is rebuttable by affirmative evidence
to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West
2002); 38 C.F.R. §§ 3.307, 3.309 (2009).
That an injury or disease occurred in service alone is not
enough; there must be chronic disability resulting from that
injury. If there is no showing of a resulting chronic condition
during service, then a showing of continuity of symptomatology
after service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted for
any injury or disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes that
the disease or injury was incurred in service. 38 C.F.R. §
3.303(d).
Under the relevant law, to establish service connection for the
cause of the veteran's death, the evidence must show that
disability incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. For a
service-connected disability to be the cause of death it must
singly or with some other condition be the immediate or
underlying cause, or be etiologically related. For a service-
connected disability to constitute a contributory cause, it is
not sufficient to show that it casually shared in producing
death, but rather it must be shown that there was a causal
connection. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.310,
3.312 (2009).
A contributory cause of death, however, is inherently not related
to a principal cause. In determining whether the service-
connected disability contributed to death, it must be shown that
it contributed substantially or materially; that it combined to
cause death; that it aided or lent assistance to the production
of death. 38 C.F.R. § 3.312. It is not sufficient to show that
it casually shared in producing death; rather, it must be shown
that there was a causal link. Id. Service-connected diseases or
injuries involving active processes affecting vital organs
receive careful consideration as a contributory cause of death,
the primary cause being unrelated, from the view of whether there
were resulting debilitating effects and general impairment of
health to an extent that would render a person materially less
capable of resisting the effects of other disease or injury
primarily causing death. Id.
Analysis
The appellant contends that her husband's service-connected
prostate cancer substantially and materially contributed to the
cause of the Veteran's death.
A certificate of death, dated in January 2005, lists an upper
gastrointestinal bleed as the immediate cause of death, with
esophageal varices and non-alcoholic hepatic cirrhosis as
underlying causes of death. At the time of his death, the
Veteran's prostate cancer and hemorrhoids were service connected,
rated 100 percent and 10 percent, respectively.
The physician who signed the Veteran's death certificate, Dr. B,
submitted a statement to VA in April 2008. In the letter, the
doctor stated that he had reviewed the records of the Veteran,
including the death certificate, and went on to opine that, in
reviewing the records, it "has become apparent" that prostate
cancer was a contributing cause of death. The physician, who had
treated the Veteran, stated that the Veteran had a history of
radiation therapy, and urology visits, and the stresses of
prostate cancer caused hyperacidity in the stomach which
"probably contributed to erosive esophagitis and esophageal
bleeding." This statement is, in essence, an addendum to the
death certificate issued in January 2005, as it is authored by
the doctor who conducted the post-mortem examination of the
Veteran and signed the death certificate.
There are two VA opinions of record which contradict the opinion
of the private physician. Both of these opinions rely on the
fact that there is no documentation in the terminal
hospitalization records, or in records available at the time of
review, of the Veteran ever having endured radiation therapy for
prostate cancer. Although this may be true, the April 2008
addendum opinion to the death certificate indicates that the
private treating physician was familiar with the Veteran's
medical history, and it unequivocally states that the Veteran did
undergo numerous therapies for his prostate cancer, which
included radiation. Thus, the conclusions of the VA opinions
(dated in August 2008 and April 2009) are not based on an
accurate assessment of the Veteran's disability picture, and
cannot be given much probative weight when viewed in light of the
April 2008 private addendum opinion.
Simply put, the Veteran's service-connected prostate cancer was
rated as 100 percent disabling prior to his death. The physician
who examined the Veteran after death (and issued the death
certificate) is of the opinion that the stresses of the severe
prostate cancer disease, as well as the therapies used to
regulate it, played a substantial and material role in
contributing to the cause of death. The only evidence contrary
to this is based on the erroneous assumption that the Veteran
never had a certain type of therapy, which is contradicted by the
statements of the Veteran's treating physician (who presided over
the Veteran at the time of death). As this is the case, the
Board must conclude that service-connected prostate cancer played
a substantial role in bringing about the Veteran's demise, and
service connection for the cause fo death will be granted.
ORDER
Entitlement to service connection for the cause of the Veteran's
death is granted.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs